EVIDENCE OF THE HANAFI SCHOLARS THAT

MARRIAGE IS VALID WITHOUT A WALI

(GUARDIAN)
Question: My question is regards to the Hanafi fiqh saying that a marriage without
the girls wali (as long as the husband to be is kuf) is valid. What evidence from
Authentic Ahadith and Qur'an is there to support this that Imam Abu Hanifa found?

Answered by Sidi Salman Younas

ANSWER:

The underlying reason behind the emergence of differing opinions among the schools of law
is due to the different methodological approaches each school employs to derive rulings. How
are texts looked at, understood, what they indicate, imply, point to and so forth are questions
that the scholars differ upon, since the primary sources are not always decisively clear-cut in
their transmission and meaning. Yet, it is agreed upon within Sunni Islam - by consensus -
that the interpretative methodology of all four schools is sound and one may follow any one
of the four schools he or she wishes. This is a crucial point to take note of, and respecting the
positions conveyed by the four accepted schools of law as valid and follow able is essential
whether one understands the proof or legal reasoning behind them or not.

With that said, one must first understand how Hanafi methodology operates in order to
understand the reasoning behind certain positions. A key feature of Hanafi usul is that it gives
precedence to the decisive texts (qati`i) over those that are probabilistic (dhanni) in nature,
and understand the latter in light of the former. For example, according to the school the
minimum obligatory recitation in prayer is one verse in two rakaahs of the obligatory prayer,
and in each rakaah of the non-obligatory prayers. The reason for this is due to the Quranic
stipulation:
    
    
 

“Recite that which is easy for you of the Qur’an.” (73:20)

Here, within the verse, the particle 'maa' is `aam i.e. it is a general expression. In the Hanafi
School the general expressions of the Qur'an are decisive in their indication (qati` al dalala)
unless decisively conditioned. Thus, when Allah says “recite that which is easy” what is
meant is “recite anything that is easy” and "anything" of the Qur’an is any extent that would
be minimally considered the Qur’an, namely a verse. The hadith commanding the recitation
of the Fatiha and a surah are not at the same level of decisiveness but are khabar wahid (lone-
narrated reports), which cannot condition and specify (takhsis) the general purport of the
Qur'an. Thus, the Hanafis consider the recitation of the Fatiha to be at the level of wajib, not
fardh - understanding its proofs in light of those that are decisive. Such an approach of
placing evidences side by side - the qati`i and the dhanni - is central to the Hanafi school.
(Usul al Shashi, pg: 39 ed. Kutub Khana Mazhari)

In light of the methodological framework defined above, it is possible to explain the Hanafi
position on marriage (nikah) and the condition of a guardian (wali). This, though, also
requires some preliminary remarks pertaining to women and their legal status and rights. It
should be known that the Qur'an and sunnah, both, decisively establish a woman as a full
legal person who has rights over her own transactions, property, wealth and so forth. For
example, the Qur'an states addressing both men and women:
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"Oh you who believe! When you deal with each other in transactions..." (2:282)

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"If you find them of sound mine then deliver over to them their fortune" (4:6)

And the numerous prophetic narrations commanding women to give their wealth in charity of
their own accord, prohibit men from usurping their property, and so on all show the
independent authority of women pertaining to such aspects. This is the position of the all four
imams, as stated by Ibn Qudama in his al Mughni.
(Also see al Mawsu`at al Fiqhiyya, section on al hajr)

Similarly, the nikah is also considered a contract (`aqd), according to the usage of the fuqaha
- similar to other financial contracts (`uqud maliyat).
(Kanz al Daqa'iq, Pg: 285 Ed. Dar al Isha`at; Fath al Qadir, kitab al nikah)

This is true even according to the Shafi`i school, as defined by Imam Nawawi in his Al-
Minhaj. Thus, one will find commonalities between the sales contract (`aqd al baya`) and the
marriage contract such as the integrals of offer and acceptance, the existence of two
transacting parties, rulings related to contractual conditions, and so forth. According to the
Hanafis, since marriage is a kind of contractual transaction and women have the full right to
engage in transactions they also have the full right to engage themselves in marriage, on the
condition that they are sane (`aqil) and have reached adulthood (baligh). The basic principle
here is "one who has the right of disposal over his/her wealth has the right over his/her self,
and one who does not [s: have such right over his wealth], does not [s: have such rights over
his self]."
(Durr al Mukhtar vol:2, pg: 209 ed. H.M Saeed)

Since a sane, adult woman has the right of disposal over her wealth she also exercises such
guardianship over her self and can therefore marry without the permission of her guardian and
nor can her guardian force her into a marriage, even if she is a virgin - contrary to the position
of the Shafi`i school.

Proofs from the Quran:

This is also established decisively by the Qur'an itself in the following verses

(1) Allah Most High states:

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"When you divorce women, and they have reached their term, do not forbid them from
marrying their husbands, when they have agreed together honourably." (2: 232).

Imam Jassas states in his brilliant work Ahkam al Qur'an:

"And His, Most Highs, saying, 'do not forbid them' means do not prohibit them or do not
place constraint upon them in marrying. Verily, in this verse is a clear indication of the
validity of marriage when she contracts it herself, without a guardian or the permission of her
guardian. Firstly, because the annexing of the contract [s: the marriage contract] is towards
her without conditioning it with the guardians permission. Secondly, It prohibits [s: the
guardian, former husband, and all others] from forbidding when the marriage partners reach
mutual agreement."
(Ahkam al-Quran 2/497-499)

Those who state that the prohibition of forbidding the woman from remarrying is only an
address to the ex-husband are not correct. As Imam Jassas states, it is permitted to take the
verse on its general and apply such prohibition to the guardian, ex-husband, and all of people.

(2) Allah Most High states:

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"If he has divorced her, then she is not lawful to him until she marries another man,"
(2:230)
Herein the act of marrying (tankiha) is connected (isnad) specifically to the woman and not
conjoined (mushtarak) to both the woman and her guardian. Similarly, Allah states:

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"Those of you who die, leaving wives, they shall wait by themselves for four months and
ten nights; when they have reached their term then it is no fault in you what they may
do with themselves honorably." (2:234)

Imam Jassas comments, "And her action [of marrying] is permitted for herself (fi nafsiha)
without the condition of a guardian."

To summarize the above:

(a) All these verses are general in their purport.

(b) Hanafi methodology dictates that the general expressions of the Qur'an are decisive in
what they in dictate. Here, the generality of the verses clearly permit women to marry
themselves off and connect the act of marrying to the woman,
(c) None of them condition the above with the consent or permission of a guardian.

Proofs from Hadith:

Further, there is also proof in hadith literature for this and even clear incidents wherein the
marriage of a woman was performed without the presence of her guardian:

(1) It is narrated in the Muwatta of Imam Malik, in a rigorously authentic narration (sahih)
that a woman came to the Prophet (Allah bless him and grant him peace) and gave herself in
marriage. The Prophet (Allah bless him and grant him peace) married her to one of his
companions. There was no wali of the woman present in this situation.
(Muwatta Imam Malik. Kitabul Nikah, Hadith 968. Narrated by Sahl ibn Sa'd as-Sa'idi. Also
in Sahih Bukhari, Kitabul Nikah, Hadith 4697 )

(2) It is narrated by Imam Tahawi that;

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Sayyidah `A'isha, the wife of the Prophet (PBUH) married (her niece) Hafsa bint `Abd Al
Rahman to Munzar ibn Zubayr while `Abd Al Rahman (Hafsa's father) was away in Syria.
(Ma`ani al Athar,vol.3 p.365 Bab al nikah bighayr wali `asabatin)

Ibn Hajar Asqalani states in his al-Diraya that its chain is rigorously authentic (sahih). This is
a clear indication of the validity of the marriage of a sane, adult female without the presence
of her guardian.

(3) It is narrated in the Sahih of Imam Muslim from Ibn `Abbas that the Prophet (Allah bless
him and grant him peace) said:
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"The unmarried woman has more right over herself than her guardian."
(Sahih Muslim, Kitabul Nikah, Hadith 2545)

This shows that the guardian cannot force an adult woman - whether a virgin or not - into
marriage and thus does not have wilayat al ijbar, contrary to what the Shafi` school states that
the virgin adult can be forced into marriage. Rather, who she marries is fully her own choice
and right.

(4) Abu Salama narrates that a woman came to the Prophet (Allah bless him and grant him
peace) and said,

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"'Indeed, my father married me to a man and I dislike it.' He (the Prophet) said to her
father, 'Let her go and marry who she wills.'"
(Nasabur Raya 6/48)

Ibn Hajar said in his al-Diraya, "This narration is mursal jayyid."

(5) In another similar narration (from Ibn Abbas) it is mentioned that:

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"A virgin came to the Prophet (peace be upon him) and mentioned that her father had
married her against her will, so the Prophet (peace be upon him) allowed her to exercise
her choice."
(Sunan Abu Dawud, Kitabul Nikah. Hadith 2091)

Hafiz Ibn Hujr said; 'Its narrators are trustworthy.'

(Talkhees al-Habeer 4/287)

It is stated in `Awn al Ma`bud, "This narration is proof for the unlawfulness of the fathers
forcing his virgin daughter into marriage."

(6) It is narrated in that Sayyidina `Ali (Allah be well-pleased with him) discouraged
marriage without the approval of the guardian but considered such a marriage valid
nonetheless.
(Kanz al Ummal Hadith 45772, Musannaf Ibn Abi Shayba 3/276)

(7) It is narrated in the Malik's Muwatta that Sa`id ibn al Musayyib said:


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"Umar ibn Khattab said, 'It is not right for a woman to be married unless with the permission
of her guardian, or a member of her family of sound judgment, or the ruler."
(Muwatta of Imam Malik: Kitabul Nikah, bab nikah bighayr wali)

This is also proof for the Hanafi School since "a member of her family" is not considered a
guardian and can be anyone.

(8) This was also the position of many of the major followers (tabi'in). Ma`mar said;

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"I asked Zuhri about a woman marrying without a guardian and he said, 'If they are
suitable, it is permitted.'
(Musannaf Ibn Abi Shayba, 3/275, Bab fi'l mir'at idha tazawjat bighayr wali)

This is also related from al Sha`bi, Ibn Sirin, Qatadah, and others.

This is the proof and reasoning behind the Hanafi position.

Objections answered:

In light of this evidence it is possible to address the proofs brought forth in the question and
clarify the Hanafi understanding of them. Again, here it must be kept in mind that all the
evidence seemingly stipulating the consent or presence of the guardian as a condition for the
validity of a marriage contract must be understood in light of that which is decisive - namely
the Qur'anic verses that have preceded.

The most commonly cited proof against the Hanafis is the statement of the Prophet (Allah
bless him and grant him peace);
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"There is no marriage without a guardian (wali)."

This narration is a lone-narrated report (khabar wahid) and not decisive as proof and
therefore cannot condition the general purport of the Qur'an. The negation "la nikah" is
interpreted not to refer to the validity of the marriage contract, but rather to propriety
according to the Hanafi scholars. There are many other examples of this such as the Prophet's
(Allah bless him and grant him peace) saying;
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"None believes until he loves for his brother what he loves for himself."
(Sahih Bukhari, Kitabul Iman, Hadith 12)

Herein the particle of negation is not a negation of one's iman in reality but rather a nafi al
kamal (negation of perfect ness). The same is the case with the nikah; it will be considered
valid but improper. This is why the Hanafi scholars mentioned that seeking the consent of the
guardian is highly recommended.
(Bahr al Ra'iq, bab al awliya' wa'l akfaa'; Bada`i al Sana`i, fasl wa ama al wilayat al nadb
wal istihbab)

The same is the case with all the other narrations on the issue. None of them are decisive - in
transmission or meaning - as proof and the probabilistic simply cannot condition the decisive.

Thus, for example, the narration of Sayyidah A'isha stating that;

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Sayyidah Ayshah reported that Allah’s Messenger (SAW) said, “If any woman marries
without the consent of her guardian then her marriage is void. Her marriage is void.
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Her marriage is void."
(Jami' Tirmidhi, Kitabul Nikah, Hadith 1194)

It is interpreted to mean that it is not very beneficial. Such usage of the word "batil" is also
present in the Qur'an in the verse:

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"You have not created this in vain (batilan)." (3: 191)

It is also possible to understand such narrations as being specific to a woman who is not an
adult yet, or the marriage of a woman to someone non-suitable (ghayr kuf').
(Ibid; `Ila al Sunan)

Rather, Imam Zayla'i mentions:

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"Bukhari and Ibn Ma`in stated that there is no sound narration in this section - concerning the
condition of a guardian."

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Imam Zayla'i has mentioned in Nasabur Raya 6/51 that Ibn Juraij said: 'So I met Zuhri and
asked him about this Hadith and he did not know this. Then I said to him, Suleman narrates
this to us from you.' He spoke well of Suleman and he said, 'I fear he had an illusion about
me.'
(Tabiyin al-Haqa'iq 5/297)

As for the verses of the Qur'an that are said to address the guardian, such verses - again - can
only be understood keeping in mind the fact that other verses clearly establish the
permissibility of women marrying themselves off of their own accord and right. For example,
the word employed in surah al-Nur for those who are "single" (ayama) applies to both males
and females and it is agreed upon that an adult male does not require the consent of his
guardian to marry. Thus, the verse does not establish the necessity of a guardian but only the
recommendation for both males and females to seek their consent even though both have the
right to marry validly without such consent.

As for the verse in surah al-Baqarah (2:32) then it has been previously discussed and is used
by the Hanafis themselves as proof. Imam Shafi` stated that this verse proves that the consent
of the guardian is required because such a prohibition within the verse can only apply if the
guardian had the right to forbid the marriage.
(Al-Mabsut, bab al nikah bighayr wali)

However, this is not necessarily the case because the prohibition here relates to societal
decorum and akhlaq, and the fact that the right to contract the marriage is conjoined with only
the woman immediately after the mention of such a prohibition makes this even clearer.

To conclude: The Hanafi position is that a sane, adult woman can marry of her own accord
without the consent of her guardian. They use numerous Qur'anic verses that they see as
decisive and prophetic narrations in conformity with such verses. The proofs that seem to
indicate the condition of the guardian as necessary for the validity of the marriage contract are
seen in light of such decisive proof. Since they are probabilistic and cannot condition the
decisive they are interpreted to refer mainly to recommendation rather than a necessary
condition. This is true of all the proof brought against the Hanafi position.

With that, it should be known that all four schools are on truth and we strongly abide by the
principle, "Our school is correct with the possibility of error, and those who disagree with us
have erred with the possibility of being correct."
(Hadiyyah al-Ala'iyyah, pg: 242 ed: Dar ibn Hazm)

AND ALLAH ALONE KNOWS THE BEST

Wasalam
Salman